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2016 (3) TMI 1432 - HC - Indian LawsRecalling of the 04 named witnesses declined - Common ground seeking recalling was that Sh. R.S. Hooda, Advocate , who was the leading defence counsel was critically ill during the trial and due to inadvertence, certain important questions, suggestions with respect to the individual roles and allegations against the respective petitioners, the injuries sustained by the witnesses, as well as the alleged weapons of offence used, had not been put to the said witnesses - HELD THAT:- In the opinion of this Court a case for recalling is made out to ensure fair opportunity to defend and uphold the concept of fair trial. The conceded fact that 148 accused persons are facing trial together, wherein the prosecution has examined 102 witnesses regarding different roles/weapons/injuries attributed to various accused qua various victims on the day of occurrence stretched over a period of time within a huge area of factory premises, does raise a sustainable inference that there was a confusion during the conduct of the trial leading to certain inadvertent omissions and putting proper suggestions on material aspects, which are crucial for the defence in a trial inter alia for an offence under Section 302 IPC, although the accused were represented by battery of lawyers with Sh. R.S. Hooda, Advocate being the lead lawyer. The accused-petitioners are charged with heinous offences including under Section 302 IPC and it was stressed that the purpose of recalling is not to set up a new case or make them turn hostile but only to have a proper defence as it is to be judicially noticed that for lack of proper suggestions by the defence to the prosecution witnesses, the learned trial Courts at times tend to reject the raised defence on behalf of the accused. Some of such omissions and suggestions by way of illustration have been spelt out in the body of the petitions and some are stated to be withheld for avoiding any prejudice to the defence, nevertheless the stated purpose is not to render the prosecution witnesses hostile to the case of prosecution. Hence such inadvertent omissions and lack of suggestions have to be accepted to be bonafide and constituting a valid reason requiring the approach of the Court to be magnanimous in permitting such mistakes to be rectified, moreso when the prosecution, concededly, were permitted twice to lead additional evidence by invoking the provisions under Section 311 Cr.PC on no objection of the defence, after the closure of the prosecution evidence. The accused-petitioners are in custody and having nothing to gain from delaying the trial. The reasons assumed for declining the recalling in the impugned order dated 16.11.2015 (P-1) are clearly misconceived and thus vitiated. It is apparent from the provisions of Section 311 Cr.PC as interpreted by the Courts that the exercise of the power to recall is not circumscribed by the stage at which such a request is made but is guided by what is essential for the just decision of the case. The respective applications dated 30.11.2015 (P-4 in both the petitions) under Section 311 Cr.PC seeking recall of the named witnesses are allowed - Petition allowed.
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